FORMER DIRECTOR OF THE GOVERNOR'S OFFICE OF TOURISM, TRADE AND ECONOMIC DEVELOPMENT BECOMING PRESIDENT OF ENTERPRISE FLORIDA, INC.
To: Raquel Rodriguez, General Counsel, Executive Office of the Governor (Tallahassee)
Through the application of Section 112.316, Florida Statutes, a prohibited conflict of interest would not be created under Sections 112.3185(3) and 112.3185(4), Florida Statutes, were the Director of the Office of Tourism, Trade, and Economic Development within the Executive Office of the Governor to be selected President of Enterprise Florida, Inc. Even though the funding agreements bear her signature and were within her ultimate authority as Director, it is clear, given the unique nature of the statutorily-created corporation and the limited discretion the Director had in administering the pass-through funds appropriated to it by the Legislature, that the application of Section 112.316, Florida Statutes, is proper under these circumstances.
The opinion also notes that the Director will need to be mindful of the proscription in Section 112.313(9)(a)4, Florida Statutes, against personally contacting the Governor's Office for two years on behalf of EFI on matters other than the fulfillment of existing agreements between OTTED and EFI.
Is a prohibited conflict of interest created under Section 112.3185, Florida Statutes, should the Director of the Office of Tourism, Trade, and Economic Development be selected to become President of Enterprise Florida, Inc.?
Under the specific circumstances addressed herein, your question is answered in the negative.
In your letter requesting an opinion, you represent that you are the Chief Ethics Officer in the Executive Office of the Governor and that you seek this opinion on behalf of Pamella J. Dana, Ph.D., Director of the Office of Tourism, Trade, and Economic Development (OTTED) located within the Governor's Office. You write that the Director is one of several persons being considered for appointment to the position of President of Enterprise Florida, Inc. (EFI), a not-for-profit corporation statutorily established as Florida's principal economic development organization. Where she, as the Director of OTTED, has signed contracts approving the pass-through of appropriated funds to EFI, you question whether the Code of Ethics would be violated should she be appointed President of EFI.
The applicable statutory provisions are contained in Section 112.3185, Florida Statutes, and provide in relevant part:
(3) No agency employee shall, after retirement or termination, have or hold any employment or contractual relationship with any business entity other than an agency in connection with any contract in which the agency employee participated personally and substantially through decision, approval, disapproval, recommendation, rendering of advice, or investigation while an officer or employee.
(4) No agency employee shall, within 2 years of retirement or termination, have or hold any employment or contractual relationship with any business entity other than an agency in connection with any contract for contractual services which was within his or her responsibility while an employee.
Section 112.3185(3) restricts the employment the Director can have after leaving OTTED by prohibiting her from becoming employed by a business entity in connection with a contract in which she participated personally and substantially through "decision, approval, disapproval, recommendation, rendering of advice, or investigation." Beginning with CEO 83-8, our interpretation of this list of activities has been limited to participation in the procurement process. Likewise, Section 112.3185(4) prohibits her from becoming employed in a non-agency capacity in connection with any contract for contractual services which was within her responsibility as Director of OTTED during the two-year period following vacation of her public position.
In CEO 01-6, we opined that neither of these provisions would be violated where the District Administrator of a DCF District accepted employment with a private provider contracting with her District. In her case, although we concluded that her participation in the procurement of the contract was both personal and substantial, and that the contract for contractual services had been under her ultimate authority as District Administrator, we concluded that her employment with the provider would encompass much more than its DCF contract, which was itself winding down. Thus, we were able to conclude that her prospective employment was not "in connection with" that contract and therefore would not violate Sections 112.3185(3) and 112.3185(4), Florida Statutes.
Conversely, in CEO 05-9, we recently opined that a former employee of the Department of Juvenile Justice would violate both Sections 112.3185(3) and 112.3185(4) were she to accept employment with a company in connection with its DJJ contract. In that situation, we concluded that her involvement in the procurement of the contract had been both personal and substantial, that the contract had been within her responsibility as a DJJ employee, and that her employment with the contractor would be in connection with its DJJ contract. Although we acknowledged the dilemma posed by the privatization of traditional government services and the need for contractors to be able to hire knowledgeable staff, many of whom formerly worked for the government when it provided the services, we concluded that it would require legislation to remedy that situation.
Here, OTTED is the entity within the Executive Office of the Governor directed by statute to contract with public/private partnerships and direct-support organizations for the purpose of economic development. Pursuant to Section 14.2015(2)(g), Florida Statutes, OTTED is to:
Serve as contract administrator for the state with respect to contracts with Enterprise Florida, Inc., the Florida Commission on Tourism, and all direct-support organizations under this act, excluding those relating to tourism. To accomplish the provisions of this act and applicable provisions of chapter 288, and notwithstanding the provisions of part I of chapter 287, the office shall enter into specific contracts with Enterprise Florida, Inc., the Florida Commission on Tourism, and other appropriate direct-support organizations. Such contracts may be multiyear and shall include specific performance measures for each year.
With the abolition of the Florida Department of Commerce, EFI was established as a public/private partnership to serve as the State's principal economic development organization. Section 288.901, et seq., Florida Statutes. Although it is a not-for-profit corporation granted 501(c)(3) status by the Internal Revenue Service, it is subject to the provisions of Chapters 119 and 286, Florida Statutes, concerning public records and open meetings. It is authorized to use the State seal. Should it dissolve, its assets revert to the State. Many members of its board of directors are public officers; even the private sector directors are required to file financial disclosure. See CEO 03-2. Although Section 288.901(1), Florida Statutes, expressly provides that EFI "shall not be a unit or entity of state government," it is clear that EFI is a hybrid organization created by statute to accomplish specific objectives serving a public purpose and that it is funded from a variety of federal, state, local, and private sources.
Notwithstanding its unique nature, however, EFI is a "business entity" as defined in Section 112.312(5), Florida Statutes. See, e.g., CEO 82-9, CEO 88-24, and CEO 91-42 (non-profit corporations are "business entities"). It also appears that the Director's prospective employment with EFI as its President could be considered as "in connection with" its OTTED agreements, that she may have been "personally and substantially" involved in procuring them vis-à-vis her signature on the two September 2005 agreements included with your opinion request, and that these agreements may be considered as within her ultimate responsibility as Director of OTTED. Although there is an issue as to whether these agreements are for "contractual services" as defined in Section 287, Florida Statutes, that term applies only to Section 112.3185(4), Florida Statutes, as Section 112.3185(3) contains no such language but involves "any contract."
However, we believe that the prohibitions of Sections 112.3185(3) and 112.3185(4) must be read in conjunction with Section 112.316, Florida Statutes, which provides:
Construction.--It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency or county, city, or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his duties to the state or the county, city, or other political subdivision of the state involved. [Section 112.316, Florida Statutes (2004).]
In CEO 95-19, we applied this provision to conclude that a former AHCA employee had not violated Section 112.3185(4) where she went to work for a health care company that was providing Medicaid HMO services pursuant to a contract, and where she had been responsible for that contract as an AHCA employee. In her situation, we recognized that the employee had not conceived of the Federal/State Medicaid HMO program, that she did not have the ability as an AHCA employee to "target" potential contractors for Medicaid HMO contracts, that the contracting itself appeared to be more of a licensing process, and that she had not been in a position to benefit the contractor over other contractors as the capitation rate was decided by others at AHCA. For these reasons, we were amenable to "constructing out" the conflict that was created by her subsequent employment with a health care company contracting with AHCA to provide Medicaid HMO services where the contract had formerly been within her responsibility while she was still an AHCA employee.
Similar circumstances justify a similar result here. It is clear that the Director was not responsible for abolishing the Department of Commerce and statutorily creating its replacement--EFI. Additionally, there was no discretion to be exercised by her about whether OTTED would contract with EFI or how much funding would be provided, as the Legislature made clear through its statutory and budgetary enactments that funding would be appropriated to EFI and administered by OTTED. We also recognize that Sections 112.3185(3) and 112.3185(4) expressly permit subsequent employment with other governmental agencies. Here, although EFI is not a governmental agency, it possesses many characteristics of an agency, and its statutory scheme manifests a transparency that gives comfort in applying Section 112.316 to "construct out" a conflict that might otherwise exist. For these reasons, we believe that it is appropriate to construe Section 112.316, Florida Statutes, to temper the literal language in Sections 112.3185(3) and 112.3185(4), thereby concluding that these provisions are not violated should the Board of Directors of EFI select the OTTED Director to become its President.
Finally, we note that Section 112.313(9)(a)4, Florida Statutes, provides:
No agency employee shall personally represent another person or entity for compensation before the agency with which he or she was employed for a period of 2 years following vacation of position, unless employed by another agency of state government.
This statute prohibits a former employee from personally representing another person or entity for compensation before her former agency for a period of 2 years following vacation of position. In CEO 00-6, we made a distinction between the types of communications which are meant to influence the agency's decision-making and communications that the employee would have with his former agency while his employer was implementing and fulfilling its responsibilities under a study grant and negotiated agreement. We concluded that the latter types of communications were not prohibited by Section 112.313(9)(a)4, Florida Statutes. Therefore, should the Director become President of EFI, she will need to refrain from personally contacting the Governor's Office for 2 years on matters that go beyond implementing and fulfilling the existing agreements between OTTED and EFI.
Your question is answered accordingly.
ORDERED by the State of Florida Commission on Ethics meeting in public session on October 14th, 2005 and RENDERED this 19th day of October, 2005.
Thomas P. Scarritt, Jr.